January 13, 2014

The Carliner Award: Not Just for the Victorious

by Kara Hartzler, Attorney, Federal Defenders of San Diego, Inc.; Member, Board of Directors, ACS San Diego Lawyer Chapter; Recipient of the 2013 ACS David Carliner Public Interest Award

When I applied for the David Carliner Public Interest Award last year, I didn’t do it because I had a stunning track record of court victories, a list of successful published decisions, or a résumé chock-full of wins. I did it because I am a giant loser.

In my work as a lawyer at a non-profit immigration rights organization in Arizona, losing was the name of the game. The vast majority of our clients had no way to fight their cases and were merely biding their time before an immigration judge would order them deported. Even the ones who did have a way to fight their cases were usually greeted by an insurmountable trifecta of bad precedent, hostile judges and an agency appellate body with a not-so-subtle agenda. I lost case after case and quickly learned to advise my clients of two things: the law as it was on the books versus the law as it would be applied to them. On any given day, the best I could hope for was a batting average that was a fraction as good as the worst major league baseball player.

And in my current job as an appellate attorney for the Federal Defenders of San Diego, Inc., my win/loss ratio has actually declined, if such a thing is possible. Despite practicing in front of the Ninth Circuit—a court derided by conservatives as a liberal bastion of judicial activism—I have yet to win a single criminal case. It’s a really good thing I went for a JD rather than an MBA because any CEO worth his salt would have tossed me out on the street long ago.

But somehow that didn’t keep me from being awarded the 2013 ACS David Carliner Public Interest Award. Here’s why: the award wasn’t created for winners. By its nature, progressive social change comes very slowly and is fought like hell by those who oppose it. And those who fight like hell to oppose change are not even as effective in defeating it as those who are indifferent to it—those who refuse to consider a new interpretation of the law simply because they’ve never heard of it before.

One of the biggest disillusionments of being a lawyer is realizing that a particular legal argument’s chance for success has very little to do with the merits of the argument and everything to do with the time and place in which it’s presented. Usually, a novel legal argument has to lose at least a dozen times or more before it wins—even though the version that’s ultimately successful was cut and paste from the very same draft that was laughingly derided the last time around.

And that’s where David Carliner comes in. Every time I’m at the bottom of the hill, looking Sisyphus-like at the new boulder I have to roll up it, I say: c’mon, Kara, is this really harder than challenging bans on interracial marriage in 1954? Is this really harder than defending LGBT rights pre-Stonewall? Is this really harder than defending the right to travel to Communist countries at the height of the Cold War? David Carliner did all those. And even if he didn’t win every case, he seeded the legal landscape with the ideas necessary so the next person could. So if you think you have a bigger boulder to roll than he did, you’re kidding yourself. Quit whining and get back to work.

The bottom line is this: the Carliner Award is not for winners. It’s for people who gut it out in the shadows. It’s for people who butt their heads against a seemingly impenetrable wall countless times and come back after every concussion.

The thing they never taught you in law school is that being a progressive lawyer isn’t just about the substance of your argument. It’s also about being stubborn enough to outlast your adversary and make yourself a giant thorn in the side of the system day after day.

Calling all Carliner Award hopefuls: losers strongly encouraged to apply.

Access to Justice, Civil Legal Services